Meese Out To Finish Off Miranda Ruling

February 16, 1987|By Glen Elsasser, Chicago Tribune.

WASHINGTON — Atty. Gen. Edwin Meese is forging ahead in his effort to reverse the U.S. Supreme Court`s Miranda ruling of 1966, despite court rulings that already have chipped away at the protective wall it created for criminal suspects.

Although Meese`s aides say a search is underway for ``the right case``

that could be used to overturn what is left of the Miranda ruling, which placed restrictions on police interrogation, the attorney general faces an uphill battle because the high court seldom reverses itself. And some of Meese`s critics say he is wasting time and money because Miranda is little more than a symbol in light of recent decisions limiting its scope.

Meese and other opponents of the ruling argue that Miranda still prevents prosecutors from using the confessions of suspects who voluntarily talk about their crimes without any threat of police coercion.

After 20 years, ``Miranda warnings`` have become familiar rituals. Before an interrogation, police must advise a suspect that anything he says can be used as evidence against him, and that he has a right to remain silent and to have a lawyer present. The court envisioned the rules as needed protection for the 5th Amendment right against self-incrimination.

``Miranda is the only thing many people know about the law,`` said Yale Kamisar, a professor at the University of Michigan law school. ``They see the Miranda warnings used on television and in the comic strips. And if Meese succeeds in overturning Miranda, will he ask the networks to edit out the warnings from old movies?``

Miranda has been the subject of numerous Supreme Court rulings. One of its first serious challenges came in 1968, when Congress adopted legislation to nullify its application to federal prosecutions.

Under this law, a confession could be used as evidence so long as a federal judge determined the confession was voluntary. It also permitted police to hold a suspect in custody for up to six hours before arraignment and still obtain a confession admissible as evidence. For several years the Justice Department sought, without conclusive results, to have the courts affirm the validity of this legislation.

The 1968 law remains on the books and has been mentioned as a tool for attacking Miranda.

Both Meese and Assistant Atty. Gen. Stephen Markman, head of the Office of Legal Policy, contend the Supreme Court has all but scuttled Miranda in its decisions since the early 1970s.

In Harris v. New York (1971) and Michigan v. Tucker (1974), the court upheld the use of statements obtained without Miranda warnings to attack the credibility of trial testimony. More recently, the court created ``a public safety`` exception in New York v. Quarles (1984), allowing the use of a fleeing suspect`s statement about the location of his gun despite the absence of Miranda warnings.

Two years ago, Justice William Brennan, the only surviving member of the original Supreme Court majority that made the Miranda ruling, complained that the court had dealt a crippling blow to Miranda. The occasion was the court`s decision in Oregon v. Elstad, which approved the use of a confession based on an earlier statement made to law enforcement officials without Miranda warnings.

But Justice Sandra Day O`Connor, author of the majority opinion in that case, disagreed with Brennan and insisted that the court had ``in no way``

abandoned ``the bright line rule`` of Miranda.

``Far from establishing a rigid rule,`` O`Connor wrote, ``we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect`s initial inculpatory statement, though technically in violation of Miranda, was voluntary.``

In two decisions last month, the Supreme Court continued to define exceptions to Miranda. In a Colorado case it ruled that police are not required to warn suspects of all the crimes they will be asked about during an interrogation. In a Connecticut case the court ruled that a suspect`s refusal to give police a written statement about a crime does not automatically invalidate his oral confession.

One legal commentator, G. Robert Blakey of the University of Notre Dame law school, said Miranda has become ``a hollow shell`` and, like the 1968 law enacted to nullify it, symbolic.

Blakey, a former congressional aide and criminal-law expert, described the original Miranda decision as ``a foray into the jungle`` that has become

``a clearing with no roads, no house, no nothing.``

Before Miranda, Blakey said, the voluntariness of a suspect`s statements was judged on the basis of due process--balancing society`s interests with those of the individual suspect. Miranda seemed to give suspects an unqualified right to silence, he said,

``This sent police up the wall,`` Blakey said.

The Supreme Court rarely overturns a prior ruling--a fact that normally discourages efforts such as Meese`s. The only previous attempt to overrule Miranda, in a 1976 Iowa case, failed.

At issue in that case, Brewer v. Williams, was the legality of a murder confession made by a former mental patient because of a police detective`s emotional plea to tell where he had buried a 10-year-old girl. The suspect earlier had indicated he would not talk to police unless his lawyer was present.